Tranter v. Duemling
| Decision Date | 26 February 2004 |
| Docket Number | No. 08-03-00044-CV.,08-03-00044-CV. |
| Citation | 129 S.W.3d 257 |
| Parties | Larry TRANTER, Appellant, v. Ellen K. DUEMLING, Appellee. |
| Court | Texas Court of Appeals |
Jose Montes, Jr., Jose Montes, Jr., P.C., El Paso, for Appellant.
Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Appellee.
Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
Larry Tranter sued Ellen K. Duemling for personal injuries arising from a car accident. Duemling filed a motion for summary judgment, arguing that the suit was barred by the applicable statute of limitations because Tranter failed to exercise due diligence in serving her. The trial court granted the motion, and Tranter appeals. We reverse and remand.
The accident giving rise to this suit occurred on October 15, 1999. Tranter filed his original petition on October 15, 2001. An order authorizing service and a citation issued on October 16, 2001. Duemling was served with process on January 17, 2002.
In her summary judgment motion, Duemling asked the trial court to take judicial notice of the 2001 phone book published by Southwestern Bell. Attached to the motion was an undated page from a phone book, showing a listing for "Duemling E" at 5940 Deer Avenue. This is the only listing for a "Duemling" on the page.
Tranter attached to his summary judgment response an affidavit by his process server, Sergio Martinez. Martinez stated that Tranter's counsel gave him the address of "1000 Rushing # 168." On October 18, 2001, he discovered that 1000 Rushing # 168 does not exist. He looked for a "10000 Rushing # 168," but the apartments at that address only went up to 41. The next day, he contacted Tranter's counsel to request further information. On October 25, he decided that "10000 Rushing # 16" might be Duemling's address. He advised Tranter's counsel of the possible new address the next day. Martinez then attempted to serve Duemling at 10000 Rushing # 16 on October 29, November 6, November 14, November 20, and November 29. Each time there was no answer. On December 4, Martinez contacted the management of the apartment complex and learned that Duemling had moved without leaving a forwarding address. That same day, Martinez informed Tranter's counsel of his finding. From December 4 to December 27, Martinez checked various resources, including the phone company, the city directory, a city appraisal, a Fort Bliss liaison, driver's license records, and the post office. He eventually determined that 5940 Deer might be Duemling's new address. On December 27, Martinez informed Tranter's counsel of the possible new address. He then attempted to serve Duemling at 5940 Deer on January 5, January 9, and January 14, 2002. Each time there was no answer. On January 9, he checked with neighbors in the area, but they did not provide any information. On January 16, Martinez discovered that Duemling might be a teacher at Andress High School, so he contacted Tranter's counsel to advise him of a possible work address. On January 17, he served Duemling at Andress High School.
A person must "bring suit" for personal injuries within two years after the cause of action accrues. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 2002). To "bring suit" the plaintiff must not only file the petition within the two-year period, but must also use diligence in serving the defendant with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990) (per curiam); Eichel v. Ullah, 831 S.W.2d 42, 43 (Tex.App.-El Paso 1992, no writ). When the plaintiff files his petition within the limitations period, but does not serve the defendant until after the period has expired, the date of service relates back to the date of filing only if the plaintiff exercised diligence in effecting service. Eichel, 831 S.W.2d at 43.
The two controlling factors in determining due diligence are: (1) whether the plaintiff acted as an ordinary prudent person would act under the same circumstances; and (2) whether the plaintiff acted diligently until the defendant was actually served. Id. at 44. Generally, whether the plaintiff exercised diligence is a fact question to be determined by a jury. Id. at 43. The question may be determined as a matter of law only if no valid excuse exists for the delay or if the lapse of time and the plaintiff's actions, or inaction, conclusively negate diligence. Rodriguez v Tinsman & Houser, Inc., 13 S.W.3d 47, 49 (Tex.App.-San Antonio 1999, pet. denied); Eichel, 831 S.W.2d at 44.
We apply a de novo standard of review to summary judgments. Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 904 (Tex.App.-El Paso 2001, pet. denied). Summary judgment is proper only when the movant shows that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Bowen, 49 S.W.3d at 904; see also Tex.R. Civ. P. 166a(c). In reviewing a trial court's decision to grant summary judgment, we resolve all doubts against the movant and view the evidence in the light most favorable to the nonmovant. Shah, 67 S.W.3d at 842; Bowen, 49 S.W.3d at 904.
When the defendant bases a summary judgment motion on the statute of limitations, she must conclusively prove the elements of that affirmative defense. Shah, 67 S.W.3d at 842. Several supreme court opinions have created some confusion about how this standard applies when summary judgment is sought on the ground that the plaintiff failed to exercise due diligence in serving the defendant.
In 1975, the court stated that the party moving for summary judgment has the burden of conclusively establishing the bar of limitations and further held that when the nonmovant "pleads diligence in requesting issuance of citation, the limitation defense is not conclusively established until the movant meets his burden of negating the applicability of [this] issue[ ]." Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975). In 1990, however, the court held in a summary judgment case, "When a defendant ... has affirmatively pleaded the defense of limitations, and when failure to timely serve the defendant has been shown, the burden shifts to the plaintiff... to explain the delay." Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990). Also in 1990, the court, citing Zale, held, "To obtain summary judgment on the grounds that an action was not served within the applicable limitations period, the movant must show that, as a matter of law, diligence was not used to effectuate service." Gant, 786 S.W.2d at 260.
These seemingly inconsistent statements can be reconciled by applying the following procedure. When the defendant moves for summary judgment and shows that service occurred after the limitations period expired, the burden shifts to the plaintiff to offer an explanation for the delay. See Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); see also Brown v. Shores, 77 S.W.3d 884, 889-90 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (Brister, C.J., concurring) ( that Zale, Murray, and Gant are arguably contradictory and suggesting what the proper procedure should be). This means only that the plaintiff must point to evidence that raises a fact issue on diligence. Brown, 77 S.W.3d at 889-90 (Brister, C.J., concurring). If the plaintiff satisfies this burden, the burden shifts back to the defendant to show why the explanation is insufficient as a matter of law. Carter, 93 S.W.3d at 313; Brown, 77 S.W.3d at 889 (Brister, C.J., concurring).1
The parties agree that Tranter's cause of action accrued on October 15 1999 and that he filed his original petition on the last day before the limitations period expired. It is also undisputed that Duemling was not served with process until more than three months after the limitations period expired. Therefore, Tranter had the burden of raising a fact issue regarding his diligence in serving Duemling.
We conclude that Tranter satisfied this burden. An order authorizing service and a citation issued on October 16, 2001, the day after Tranter filed his original petition. This demonstrates that Tranter exercised diligence initially. See Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 535 (Tex.App.-Dallas 1987, no writ).
Tranter also raised a fact issue as to whether he continued to act diligently until Duemling was served. Martinez's affidavit indicates that Tranter's counsel initially provided him with a nonexistent address.2 Within ten days after Martinez received the citation, however, he had found another possible address for Duemling. Then, from October 29 to November 29, he unsuccessfully attempted to serve Duemling at that address five times at various times of day. On December 4, he learned from the management of the apartment complex that Duemling had moved without leaving a forwarding address. Because it thus appears that Duemling lived at that address at one time, one could infer that Martinez had a reasonable basis for attempting to serve her there.
Upon learning that Duemling had moved, Martinez spent slightly more than three weeks trying to determine another address for Duemling. His affidavit details the resources he used during this period. We also note that this period included the Christmas and Chanukah holidays. See Harrell v. Alvarez, 46 S.W.3d 483, 486 (Tex.App.-El Paso 2001, no pet.) (considering that the time between filing and service included Thanksgiving); see also Cooper v. Balderas, No. 08-00-00076-CV, 2001 WL 925772, at *5 (Tex.App.-El Paso Aug. 16, 2001, pet. denied) () (considering the fact that Thanksgiving, Christmas, Chanukah, and New Year's Day occurred during a period in which the plaintiff offered no explanation for lack of efforts to...
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CHAPTER 2 Standards of Review and Scope of Review
...personally).[246] Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see also Tranter v. Duemling, 129 S.W.3d 257, 262 (Tex. App.—El Paso 2004, no pet.) (facts described by Tex. R. Evid. 201(b)(2) are known as "verifiably certain facts").[247] Tex. R. Evi......